Such an order compels the government to retain everything it collected even after the standard five-year deletion period, so that the plaintiffs can pursue civil discovery and if necessary, prove that their calls were among those swept up.

In the Thursday filing to Judge Jeffrey White, the EFF also said that it wants the United States government to “disclose the steps it has taken to preserve evidence and to disclose whether it has destroyed telephone records, Internet metadata records, Internet or telephone content data, or any other evidence potentially relevant to these lawsuits.”

Since the Snowden leaks, the Foreign Intelligence Surveillance Court (FISC) has taken the unprecedented step of declassifying a number of court orders and related documents that have shed light on its legal rationale and actions.

In August 2013, the FISC declassified an opinion from September 25, 2012 that described how the government “orally informed the Court that NSA had made a ‘corporate decision’ to purge all data in its repositories that can be identified as having been acquired through upstream collection before the October 31, 2011 effective data of the amended NSA minimization procedures approved by the Court in the November 30 Opinion.”

In short, no one is really sure exactly what the NSA has already deleted.

If this request is granted, it would be a notable intermediate victory for civil libertarians and privacy activists in their attempt to understand the scope and scale of the government’s metadata collection and related records handover.

“An untenable position”

Less than a week ago, the FISC rejected the Department of Justice’s argument that it needed to retain metadata information for longer than the normal five years as a way to comply with ongoing related lawsuits.

But omitted from that list was one of the oldest ongoing cases challenging the NSA metadata program, Jewel v. NSA. The case dates back to 2008, long before the Snowden revelations confirmed the vast metadata handover program. Carolyn Jewel, the lead plaintiff, is a romance novelist who lives in Petaluma, California, north of San Francisco.

But now, in a new court opinion and order (PDF) issued Wednesday, the FISC reversed itself in light of what it calls “additional facts,” based on another court ruling from Judge Jeffrey White in San Francisco. White ordered (PDF) temporary restraining orders to preserve the metadata records in both Jewel and First Unitarian.

The FISC appeared to be unaware of the standing preservation order in Jewel and the temporary restraining orders, which is why it initially gave the order denying the government’s preservation request. On March 11, four days after the California federal court’s decision, the government informed the FISC of those temporary restraining orders.

As FISC Judge Reggie Walton wrote:

These intervening developments fundamentally alter premises on which the March 7, 2014 Opinion and Order was based. It is now apparent that some civil plaintiffs actively seek to preserve the [business records] metadata as potentially relevant to their claims. What is more, by issuing the March 11 [temporary restraining order], the District Court has directly prohibited NSA from doing what the FISC has ordered it to do—namely, destroy [business records] metadata no later than five years from when it was initially produced. These conflicting directives from federal courts put the government in an untenable position and are likely to lead to uncertainty and confusion among all concerned about the status of [business records] metadata that was acquired more than five years ago.

The government has until March 17, 2014 at 11:00am Pacific Time to file its opposing brief, with a hearing set in San Francisco two days later.